Opinion
2007-1411 Q C.
Decided July 10, 2008.
Appeals from (1) an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), dated December 4, 2006, (2) an order of said court (Thomas D. Raffaele, J.), dated June 20, 2007, (3) a judgment of said court entered June 20, 2007, and (4) an order of said court (Diccia T. Pineda-Kirwan, J.), entered August 14, 2007. The order dated December 4, 2006 granted defendant's motion to vacate a default judgment entered in favor of plaintiff on August 30, 2006, lifted all restraints on defendant's bank account, required plaintiff to restore all funds removed from defendant's bank account and directed the clerk of the court to place the matter on the trial calendar. The order dated June 20, 2007, following a default by plaintiff in appearing at argument on a motion by defendant to restore the matter to the calendar, granted defendant judgment against plaintiff in the principal sum of $7,901. The judgment, entered June 20, 2007 pursuant to the order of the same date, awarded defendant the sum of $7,991. The order entered August 4, 2007 denied plaintiff's motion seeking to vacate the order dated June 20, 2007 and the judgment entered that date.
Appeals from orders dated December 4, 2006 and June 20, 2007, and from judgment entered June 20, 2007 dismissed.
Order entered August 14, 2007 reversed without costs, motion by plaintiff to vacate the order dated June 20, 2007 and the judgment entered on the same date granted, and, upon such vacatur, defendant's underlying motion to restore the matter to the calendar denied.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
Plaintiff bank brought the present action to recover $8,433.79, the amount to which defendant's checking account had become overdrawn. Upon defendant's default, judgment was entered in favor of plaintiff on August 30, 2006. After defendant moved to vacate the default judgment, plaintiff learned that defendant had permitted one Kendall Brown to deposit checks totaling $7,901 into defendant's bank account and had voluntarily withdrawn $7,901 from his bank account, which he had given to Brown. However, Brown had stolen and forged the checks he deposited into defendant's account, and, after defendant paid the $7,901 to Brown, the checks bounced. As a result, defendant's bank account became substantially overdrawn, leading to the present action.
After confirming that defendant had been the victim of a fraud perpetrated by Brown, plaintiff entered into a stipulation with defendant to discontinue the action with prejudice. The fully executed stipulation was filed in court on December 7, 2006, and the discontinuance of the matter, per stipulation and with prejudice, was signed by Judge Timothy J. Dufficy.
Although plaintiff had submitted opposition papers to defendant's motion to vacate the default judgment, plaintiff failed to appear on the return date of that motion, which motion was then granted on default. The order issued by the court on December 4, 2006, three days before the stipulation was filed, provided, inter alia, that, "All restraints on Defendant's bank account are hereby lifted, Plaintiff to restore all funds removed from Defendant's bank account, including fees taken by the bank and the marshal. Defendant has filed an answer herein and the Clerk of Court is directed to place this matter on the trial calendar. Said trial date to be final." (In fact, there was no evidence that plaintiff or the marshal had removed any funds from defendant's bank account.)
On April 6, 2007, defendant brought an order to show cause seeking to restore the action to the calendar based on plaintiff's "failure to comply" with the order of December 4, 2006. Again plaintiff submitted papers in opposition to defendant's motion and appeared in court, but failed to appear on the adjourned date of the motion due to inadvertent law office failure. There is no indication that the lower court considered plaintiff's opposition papers. An order issued, and a default judgment of $7,991 was entered in favor of defendant, on June 20, 2007. Six days later, plaintiff moved by order to show cause to vacate the judgment or, in the alternative, to renew or reargue the prior motion that had resulted in judgment for defendant. Plaintiff's motion was denied by order entered August 14, 2007.
Plaintiff's appeals from the intermediate orders dated December 4, 2006 and June 20, 2007 are dismissed because plaintiff's right of direct appeal from these orders terminated with the entry of judgment on June 20, 2007 ( Matter of Aho, 39 NY2d 241). The June 20, 2007 judgment was entered on plaintiff's default and is not appealable by plaintiff ( see CPLR 5511).
The making and filing of a stipulation of discontinuance has the same effect as an order of discontinuance ( Banno v Clearwater Beach Colony, 8 AD2d 798). "When an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified" ( Newman v Newman, 245 AD2d 353, 354). A stipulation of discontinuance deprives the court of jurisdiction to entertain subsequent applications for relief by the parties ( e.g., Germanovich v Bethlehem Steel Corp., 270 AD2d 863; Kurtz v Kurtz, 135 AD2d 615; Matter of Creamer, 37 AD2d 33).
The filing of the stipulation of discontinuance with prejudice nullified all prior judicial orders and judgments, and deprived the court of jurisdiction to render any further orders or judgments. Plaintiff's motion to vacate the order and default judgment of June 20, 2007 entered in favor of defendant should therefore have been granted ( see CPLR 5015 [a] [4]). Accordingly, the order entered August 14, 2007 denying plaintiff's motion to vacate the order and judgment of June 20, 2007 is reversed, said order and judgment are vacated, and defendant's underlying motion to restore the matter to the calendar is denied.
Golia, J.P., Rios and Steinhardt, JJ., concur.